Yulu & 3 others v Nzuki & 2 others (Officials and Representatives of Independent Faith Baptist Churches of Kenya) (Environment & Land Case 192 of 2018) [2025] KEELC 1185 (KLR)
The bottom line
#The Environment and Land Court in Mombasa ruled that a national church organization held Tiwi land in trust for the local church and must transfer it.
What this practically means
#Executive summary
#Key legal issues
#Whether the organization holds Land Parcel No. Kwale/Tiwi/1428 in trust for the church
A constructive trust was established in favour of the church; the land was bought with donations from the USA coordinated by the 4th plaintiff and Robert Williams and registered in the organization's name solely because the church was not yet registered
Section 26 LRA vests title in the registered proprietor, but trust is an overriding interest under section 28 that must be proved. PW1 testified the property was registered in the organization's name to hold in trust for the unregistered church. DW1 admitted the organization did not participate in the purchase, and DW2 and DW3's evidence did not materially challenge the trust claim; the court invoked the constructive trust doctrine as approved in Shah v Mombasa Bricks & Tiles and Soulos v Korkontzilas.
Which constitution of the organization governed the withdrawal and release of the land
The old constitution was in force when the suit property was registered; moreover, section 7 of the new constitution duplicated article 12 of the old one, so under either version, on a 2/3 members' resolution to withdraw, the title reverts to the local church
The defendants pegged the amendment at about 2015 but were unsure and produced no Registrar's authorisation. Since only two constitutions were spoken of and the property was registered in 1982, the old constitution must have applied. The court noted section 7 of the new constitution was a verbatim duplication of article 12 of the old, retaining the reversion provision, so the plaintiff's claim flowed under either version.
Whether the plaintiffs proved adverse possession
No; a beneficiary under a trust cannot be in adverse possession against the trustee, and possession was not proved
Having found the organization held the land in constructive trust, the church was the beneficial owner throughout and time could not run in its favour. Further, none of the plaintiffs proved actual possession. The court applied Halsbury's principle that time runs only where the true owner has ceased to be in possession. The adverse possession claim therefore failed even though the trust claim succeeded.
Whether the defendants' counterclaim was proved
Dismissed; even though undefended, the counterclaimants had to prove their claim on a balance of probabilities and failed, and the trust finding rendered it a non-starter
The defendants' defence amounted to mere denials and they tendered no evidence supporting the counterclaim. DW1 admitted the organization did not participate in the purchase. An undefended claim does not relieve the claimant of the evidential burden; having found a constructive trust in favour of the church, the organization could not assert ownership against the church.
Legal principles established
#- A registered proprietor's title can only be challenged on proof of fraud, unprocedurality, illegality or corruption
- Trust is an overriding interest under section 28 of the Land Registration Act; registration of a trust is not necessary but it must be proved
- A party who holds title in constructive trust for another cannot claim to own that property
- A beneficial owner in possession under a trust cannot claim adverse possession against the trustee, and possession must be proved
- An undefended counterclaim must still be proved on a balance of probabilities
Court orders
#- 1.A declaration that the Independent Faith Baptist Churches of Kenya was holding Land Parcel No. Kwale/Tiwi/1428 under trust for Tiwi Independent Faith Baptist Church, its beneficial owner
- 2.An order that Independent Faith Baptist Churches of Kenya transfer Land Parcel No. Kwale/Tiwi/1428 to Tiwi Independent Faith Baptist Church of Kenya within ninety (90) days, and in default, the Deputy Registrar of the court to execute all necessary documents to give effect to the order
- 3.Plaintiffs awarded costs of the suit
- 4.Defendants' counterclaim dismissed with costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute touching on title to land (Land Registration Act); provisions cited include sections 26, 28 of the Land Registration Act, section 107 of the Evidence Act and section 27 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Yulu & 3 others v Nzuki & 2 others (Officials and Representatives of Independent Faith Baptist Churches of Kenya) (Environment & Land Case 192 of 2018) [2025] KEELC 1185 (KLR)", Case Analysis (2025). ELC Suit at Mombasa (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1185/eng@2025-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.